Q&A: Wired's guide to Digital Economy Bill controversy

The subsequent Bill has been through the House of Lords and the next stage is a second reading in the House of Commons. There is a growing campaign to get the Bill scrapped, or at least Clause 18, which tackles illegal file downloading. But why has the Bill, and this clause in particular, got so much opposition? Here's Wired's quick guide.What is the Digital Economy Bill?The Department for Business, Skills and Innovation declares: "The Digital Economy Bill will drive the UK’s vital creative and digital sectors to bolster future growth and jobs."

It tackles everything from "enhancing" Ofcom's duties, regulating copyright licensing and the future of public service content to games ratings. However, it was Clause 17, or Clause 18 as it has now become, that has excited the most heated public debates.

What is Clause 17/18?The original Clause 17 gave the Secretary of State the power to amend current copyright provisions to prevent or reduce copyright infringement on the web. These amendments could include anything from giving the Secretary of State the power to give organisations (for example, Ofcom) specific duties or rights to help fight infringement or, indeed, modify or remove the powers that such organisations already have. The Secretary of State could also amend the provisions to be able to issue fines.Who raised concerns about this clause?In December, representatives from eBay, Facebook, Yahoo and Google wrote a letter to Lord Mandelson raising their concern that Clause 17 "creates uncertainty for consumers and businesses and puts at risk the UK’s leading position in a digital Europe".

What did these companies suggest?Timing the letter to coincide with the second reading of the bill in the House of Lords, they urged the removal of the clause. Instead, it was voted down and in its place, an amendment was put forward by Liberal Democrat peer Lord Clement-Jones.

What was the Lib Dem's amendment?The amendment, which became Clause 18, would give a High Court judge the power to issue an injunction against any website deemed to be hosting a "substantial" amount of copyright infringing material. But critics warned that this could see websites, including YouTube, forced offline.

How did Google et al respond to this?They wrote another letter, but this time signatories included an array of web bigwigs, academics and politicians, including the Managing Director of Google UK and Ireland, Stephen Fry and MP Tom Watson. "Endorsing a policy that would encourage the blocking of websites by UK broadband providers or other Internet companies is a very serious step for the UK to take," they stated.

And that made a difference?Not really. The amendment itself was amended -- this time by Lord Razzall who sought to placate critics by tabling his own suggestion, which gives the owner of any website that has been blocked the right to apply to the court to have the block removed.

But in yet another twist, this was withdrawn following a promise issued by the House of Commons, that it would create an alternate Clause 18 taking in all of the suggestions made by the Lords.

Right. So that's the new clause that's causing all this shouting?Correct. This new Clause 18, inserted on 30 March, which will now be debated on 6 April. The Government believes that "the amendment delivers the effect that the House of Lords wanted to achieve when it voted clause 18 into the Bill, but in a way that takes into account the legal and other concerns to which the clause gives rise."

The new clause leaves room for the Secretary of State to propose regulations in the future, but his power is to be "limited". These regulations could include giving copyright owners the power to apply for court injunctions to get websites blocked if they are deemed to contain illegal material. The Clause emphasises, however, that there will be "extensive" safeguards in place to prevent abuse.How could it affect me?The amendment sees the focus of any illegal download prevention action focused on websites as opposed to individuals -- the torrent website rather than the torrent downloader. The notorious three-strikes-and-you're-out policy towards web users downloading copyright material no longer exists.

It doesn't sound like we're out of the woods yet, then?No, so much is still unknown: How will a website be informed of action being taken against it? Could a website be blocked while court action is being taken or does the ISP have to wait for a verdict? And, most importantly, will this clause get the debate it deserves before the General Election?

Comments

http://bit.ly/dearcitizens #debill I know you have all done it, but please, DO IT AGAIN, IT ONLY TAKES 2 MINUTES to write to your MP, it is an email pre-addressed, really easy to state your views, together we can make a difference and stop the dark lord breaking the internet and making the Uk a laughing stock. The bill is seriously flawed. It needs more time and consideration or scrapping and doing again properly.

cyberdoyle

Apr 1st 2010

One correction to this piece - no versions of Clause 17/18 (including the latest proposal) would replace the so called three-strikes provisions. The powers to block access to infringing websites is in addition to the powers to suspend or restrict the internet connections of individuals who persistently file-share unlicensed content.

The three-strikes stuff is set out in Clauses 4-16 of the Bill. Although three-strikes has been controversial outside parliament, these clauses in their current form have not proven too controversial in either the House Of Lords or House Of Commons.

Basically Clause 17/18 in all its incarnations has been based around the desire of certain content owners, and particularly record label trade body the BPI, to ensure the Digital Economy Bill gives them the power to block access to those websites which contain predominantly infringing content, or which provide links to predominantly infringing content.

The first version provided the relevant minister the right to introduce such powers (or any other new copyright rules) once the Bill was law. The second version specifically introduced the powers the BPI currently want. The latest rather wordy proposals basically obligate the relevant minister to introduce such powers once the Bill is law, but only after consulting a load of people on how such powers should work.

Basically, in addition to all the three-strikes nonsense, the BPI want copyright law amended so that it clearly states:

1. If you predominantly provide links to infringing content, but don't actually host any infringing content (so, like The Pirate Bay) you are still liable for copyright infringement.

2. If a site is deemed to be rampantly infringing copyright, ISPs are obligated to block access to it - so websites like The Pirate Bay who lose civil court case after civil court case but manage to stay online are, in theory, blocked to UK web-users by the ISPs.

Current copyright law could be interpreted to say both of these things already, but the BPI want it stated nice and clearly.

Of course those who oppose Clause 18 say the danger is, rules set up to stop the likes of The Pirate Bay might be used against other legit search engines like Google, which they wouldn't but, in theory, could be.

And here ends my ramble on the DEB. My coverage of it all is at http://newsblog.thecmuwebsite.com/?tag=/digital+economy+act.

I don't especially object to anything in the DEB, and most of the arguments used against it are slightly misleading. Though will the DEB stop file-sharing and online piracy? No, of course it won't.